I saw this opinion written by Sanjeev Sabhlok (as a guest poster) over at Catallaxy Files and just about fell out of my chair. It relates to the Federal Parliament’s citizenship crisis and attempts to follow the ‘law is stupid’ line of argument:

Stop worshipping the Constitution. Please start thinking.

Citizenship is meaningless if it does not include the right to represent the community in parliament. Australia citizenship is arguably worthless since our constitution imposes restrictions on citizens who can contest elections.

But every policy must address a real problem. What is the evidence to date to back up this policy? How many Australian parliamentarians have been caught spying for communists? Indeed, such people are known to keep their intentions secret. A parliamentarian spying for North Korea is not going to take out N.Korean dual citizenship.

But there’s the other thing we seem to forget: that Australians are required to fight for our foreigner Queen. We can have a British Queen but an Australian who has British citizenship by decent is unfit to govern Australia?

And why is it that migrants like me become instantly fit to govern Australia but someone born and brought up here is not? When I came here as a permanent resident in December 2000, citizenship was on offer to me within two years. I decided to take it in 2005 after handing my Indian passport back to the Indian embassy. Therefore, within a few years of my landing up here, I became eligible to represent Australians.

But many of those who recently evicted from the parliament were born and brought up here. They paid taxes for the upkeep of Australia the whole of their life. They know all about this wonderful land and its people (I don’t even know the Australian national anthem). Many of these wonderful people have put a huge effort throughout their life to take this great country forward.

But they are not fit to represent Australians. I am.

Petty bureaucratic mania has overtaken Australia.

…

Otherwise sensible people in Australia have lost their head. What else would explain a desire to audit everyone’s citizenship status? Why stop there? Were all previous parliaments kosher? We should audit all previous parliaments and annul all laws passed during the previous century that may have been contaminated by these enemies of Australia.

We elect our representatives to think on our behalf, not to worship the Constitution. The Constitution has been very badly drafted in this case. The law is a farce. Instead of fixing it, our representatives are wasting precious parliamentary time in political point making. Stop it, please.

No Sanjeev. That’s a bad Sanjeev.

Please… allow me to retort…

Our Constitution does not unduly impose ‘restrictions on citizens who can contest elections’. To the contrary, any foreign citizenship issues a candidate may have are very easily resolved by the candidate inquiring into and renouncing any such foreign citizenship. But don’t take my word for it: here’s the High Court unanimously saying the exact same thing:

Finally, while it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s 44.

Suffice to say, if you have sub-Gump level IQ, and are incapable of working your way through this procedure, then Federal Parliament is not for you. Goodness knows the current batch of Federal politicians we have are hopeless enough as it is without needing to lower the bar for entry any further.

Next, the only reason there is a (perfectly valid) desire to ‘audit everyone’s citizenship status’ is because of the doubt created by the behavior of our bumbling Federal politicians. They only have themselves to blame, not the law. Indeed, if a car has been stationary for over 100 years and you plough right into it, then who do you think is going to have a bad time? The fact that further ineligible politicians are still leaking out (and only when dragged kicking and screaming) shows perfectly well why we need to immediately ascertain the legitimacy of all of our Federal politicians and preserve the integrity of parliament.

As for whether this all means that previous laws of Parliaments are invalid, who knows? Regrettably, this is what happens if people treat compliance with fundamental laws as optional and allow the fallout to fester. A country can only ever function as well as its citizens and politicians comply with its laws. That being said, something tells me that a current, legitimate Parliament could easily pass legislation retrospectively ratifying every law made or purportedly made by previous Parliaments. If that’s the case, then there’s no need to worry about any floodgates opening in this respect.

As for the side-issue of whether ineligible politicians should be required to pay their salaries back, that’s a tricky question. Last night, on 2GB, (at 25.50), Andrew Bolt offered the scenario of an electrician who had ‘done all this stuff’ and that ‘you’ve got no problem with the wiring whatsoever’ [TMR: both Andrew and I have plenty of problems with the ‘wiring’ of our Federal Parliament – but let’s put that to one side for the moment], only to discover years later that he didn’t have his certificate – to which Andrew asked ‘would you demand your money back?’.

Generally speaking, I’m not so bloodthirsty over this issue that I want to see a stack of Federal politicians potentially bankrupted over this issue. To me, trampling over somebody when they’re down is un-Australian (no matter how high up that person may have previously been).

That being said, I do offer up a the following like-for-like counter to Andrew’s above scenario. Under Western Australia’s building laws, if you provide building services (e.g. construction of a patio – see paragraphs 57 and 105 if you’re keen) without a valid building licence, you are not entitled to a cent from the customer and a court will force you to pay back everything you have received. You have no contractual right to payment, no right to quantum meruit, no claim for unjust enrighment – not a sausage. It’s harsh, but that’s the way it is.

I have little doubt that this principle is replicated in various other States and Territories and across various other industries. This then leads to the following question which ordinary citizens have every right to ask: if it’s good enough for us, is it not good enough for our politicians? It’s very difficult to argue against this and I can only leave it with you to make your own mind up.

Lastly, what’s with Sanjeev’s straw-man telling us to ‘stop worshipping the Constitution’? Who said anything about worshipping it? How about we simply continue to respect the Constitution as the highest law of our great country? Sorry Sanjeev, but you’ll have to forgive me any many others for doing exactly that and holding today’s politicians to account in complying with its provisions.

While we are on the subject, there is much ado about Julia Banks possibly being “eligible” for Greek citizenship. Does s44(1) mention “eligibility”?
I am eligible for Republic of Ireland citizenship. That does not make me a citizen until I first apply to be on the Register of Foreign Births, and thence to make application for citizenship. I am not an Irish citizen and could not obtain a passport until these hoops are jumped. I would think it a similar situation with Julia Banks.

As Neil Dellaca says above, it is strange that the High Court does not seem to have considered an interpretation of S44(1) that is compatible with the situation at the time the Constitution was composed. An article in the Oz the other day [http://www.theaustralian.com.au/opinion/exactly-when-did-britain-become-a-foreign-power/news-story/0061d03440ec24d217fa2e80ef779465] by historian Gregory Pemberton is most informative. At that time there was no “Australian” citizen. People born within the British Empire were regarded as British Subjects. Period. It is not difficult to imagine that the creators of this document did not contemplate a future situation in which this would not be the case. He asks the question “How and when did the rules change to get us into today’s parliamentary pickle? By what legal acts did Australia and Britain become foreign to one another, rendering some of today’s politicians ineligible?”
He raises other points of historical significance that seriously question the idea that citizens of Canada, New Zealand, India, or the UK are influenced by a “foreign power”. It is bizarre that the High Court does not appear to have considered this concept.
There is no doubt whatsoever that the government has handled this issue abominably. I agree with Neil that while an “amnesty” might be appropriate at the moment, politicians who overlook this question in future should be hit with the entire bill.
Ironically, it seems to me that Sanjeev’s opinion, being one from a different culture, serves to underscore the need for s44(1) to remain as is.

I don’t have a problem with following the Constitution so in that regard I too am at odds with Sanjeev however I can’t believe that the High Court has seen fit to interpret said document as it has.

Given that the Australian Constitution still allows for New Zealand to join the federation as a state, it seems odd for the (ex) deputy-PM to be in strife because NZ is a “foreign power”!

I was astounded that the definition of a “foreign power” wasn’t even raised/challenged in the recent High Court case. Given that the Constitution was drafted at a series of constitutional conventions held in the 1890s, was passed by the British Parliament as part of the Commonwealth of Australia Constitution Act 1900 and took effect on 1 January 1901 it’s difficult to see how not just New Zealand but Canada and India all British Colonies at the time, could have been regarded then or now as “foreign powers” let alone the United Kingdom itself. The expression in the Constitution isn’t a “foreign country” but a “foreign power”. Truly bizarre in my view!

We have wasted so much time and effort on this and SSM with more to come on both; fiddling while Rome burns.

I personally feel uncomfortable with the reverse onus of proof model particularly when it is being loudly pushed by the Greens. You only have to look at WAs EPA act to see how bad the presumption of guilt and its up to you to prove your innocence legal system is for the accused. Maybe an amnesty followed by if you are “duelly”you WILL pay back the cash and entitlements will keep the bastards honest